Judge Laurence Silberman dies, overturned DC gun which led to Supreme Court Heller decision
Second Amendment stalwart on U.S. Court of Appeals said the individual has the right to keep and bear arms.
Judge Laurence Silberman of the U.S. Court of Appeals for the District of Columbia died Sunday night. Silberman was instrumental in affirming Second Amendment rights when he ruled in 2007 that D.C.’s complete ban on gun ownership was unconstitutional.
The city appealed his ruling to the Supreme Court, which then led to the landmark Heller decision on gun control. I called Dick Heller about the news.
"Judge Lawrence Silberman was a staunch defender of constitutional rights and was a visibly passionate defender of the Second Amendment in the courtroom —of which the Supreme Court took note,” he said.
Heller added that the High Court “applied Silberman's history and reasoning” in his 2008 case District of Columbia v. Heller, which he referred to as the “firearms freedom case.”
You can watch my report on this breaking news on my YouTube channel in the video below or keep reading.
Dick Heller
Silberman, who was 86 years old, famously wrote in his ruling in Parker v. District of Columbia case this:
"The Second Amendment protects an individual right to keep and bear arms."
George Lyon, a Washington, D.C. resident and lawyer, was a plaintiff in Parker.
“It is a sad day to lose such a distinguished jurist,” Lyon told me on Monday. “His opinion in Parker v. District of Columbia paved the way for the Supreme Court to confirm that the Second Amendment protected the individual right to possess and use arms for self-defense.”
Heller and Supreme Court
Parker, Lyon and the other plaintiffs were dismissed as Dick Heller became the sole plaintiff for the lawsuit when it got to the Supreme Court level, thus it became District of Columbia v. Heller. Judge Antonin Scalia wrote that landmark 2008 decision, which upheld Silberman’s ruling in the Parker.
The Heller ruling made it clear that every citizen has the right to own and carry a gun (unless prohibited by law.)
Scalia wrote the same as Silberman, that the individual has the right to keep and bear arms. This was a landmark ruling because up to that point, some courts had determined that the prefatory clause of the Second Amendment for the militia only guaranteed a civic duty, not an individual right to self-defense.
THE SECOND AMENDMENT: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
Militia and individuals
Silberman wrote this about the militia argument:
At first blush, it seems passing strange that the able lawyers and statesmen in the First Congress (including James Madison) would have expressed a sole concern for state militias with the language of the Second Amendment. Surely there was a more direct locution, such as “Congress shall make no law disarming the state militias” or “States have a right to a well-regulated militia.”
He also wrote in Parker:
In determining whether the Second Amendment's guarantee is an individual one, or some sort of collective right, the most important word is the one the drafters chose to describe the holders of the right-“the people.” That term is found in the First, Second, Fourth, Ninth, and Tenth Amendments.
The natural reading of “the right of the people” in the Second Amendment would accord with usage elsewhere in the Bill of Rights.
Heller to Bruen
Heller was one step but the Supreme Court’s June ruling in New York State Rifle & Pistol Association Inc. v. Bruen took Silberman’s original ruling even further.
Bruen, written by Justice Clarence Thomas, said that Heller was about owning a gun and this case is about carrying one outside the home:
In District of Columbia v. Heller, 554 U. S. 570 (2008), and McDonald v. Chicago, 561 U. S. 742 (2010), we recognized that the Second and Fourteenth Amendments protect the right of an ordinary, law-abiding citizen to possess a handgun in the home for self-defense.
In this case, petitioners and respondents agree that ordinary, law-abiding citizens have a similar right to carry handguns publicly for their self-defense.
We too agree, and now hold, consistent with Heller and McDonald, that the Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home.
Next Biden Judge
Silberman was appointed by Pres. Ronald Reagan in 1985. He will likely be replaced by a Pres Biden appointee who is not a supporter of the Second Amendment.
But the appeals courts judges’ views are no longer vital to stopping unconstitutional gun control laws because of the broader ruling in Bruen. Thomas wrote:
The test that the Court set forth in Heller and applies today requires courts to assess whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding.
This means there has to be a similar gun control law in place at the founding of the country. Now with Bruen, appeals courts are being challenged to meet these criteria before sending any more gun control laws back to SCOTUS.
D.C.’s legal mistake
As I explain more in the video, D.C. made a mistake for gun control activists when it appealed the Parker decision to the Supreme Court.
The city assumed it would win but instead had the high court uphold Silberman’s ruling about individual rights. A year later, the Supreme Court ruled in a case called McDonald v City of Chicago that the individual right in all states, not just the District of Columbia.
So if the District had not appealed, we wouldn’t have gotten the Heller ruling and likely not the Bruen —- gun bans and extreme laws like those would still be in effect.
Since then, D.C. has stopped appealing when it knows it could be setting a precedent that big cities don’t want. We saw that recently in a story I wrote about the 20-round carry limit for D.C. residents.
This is also the reason D.C. became a shall-issue state for carry permits because it didn’t want to be the cause of changing carry laws, which ended up coming from New York.